DPP v Rose; DPP v Miller [2005] VSCA 275

The facts

5 John Dennis Rose was born on 16 April 1982 and Murray James Miller was born on 21 August 1982, and so in July 2003, at the time of the offending Rose was 21 years of age and Miller was only 20 years of age.

6 On Monday 14 July 2003 at about 8.50 p.m., they left rented premises at Lincoln Street, Moe at which they were both then living, and Miller drove them in his 1991 Ford station wagon to a position near to a licensed grocer shop called "Al's Licensed Supermarket" at Boolarra Avenue, Newborough. Rose was carrying a loaded sawn-off double-barrel 12-gauge shotgun and a silver-bladed knife.

7 Miller drove the car into nearby Delburn Street and turned off the headlamps and engine and remained in the vehicle. Rose left the vehicle with his face covered with a bandanna and, armed with the shotgun and the knife, entered the licensed grocer shop. The sole occupant at the time was the 43-year-old male proprietor, Mr Allan Marriott, who was positioned behind the front service counter. Rose walked directly up to the counter and, holding the shotgun, said to Mr Marriott: "Give me your money." Seeing the gun, Mr Marriott ducked below the counter, but Rose leant over the counter and struck Mr Marriott on the top of the head with the stock of the weapon. That caused blood to stream from Mr Marriott's head.

8 Rose then extended his right arm, pointing the gun directly at Mr Marriott's head, and again demanded money. He had by that time also produced the knife and was carrying it in his left hand. Mr Marriott accordingly made several attempts to open the drawer of the cash register, although to begin with his fear and the blood streaming from his head wound down his face were such that he was unable to do so. Rose thus made further repeated demands before Mr Marriott managed to open the drawer. Having done so, he took out $50 notes to the value of approximately $200 and handed them to Rose, and Rose then ran from the shop and back to the waiting vehicle in Delburn Street. Miller then drove himself and Rose back to the premises at Lincoln Street, Moe. Mr Marriott was later taken to hospital, where he received several stitches to his head wound.

9 The next evening, 15 July 2003, Rose and Miller left the Lincoln Street premises at about 8 p.m. in the same vehicle, again driven by Miller, and again in possession of the sawn-off shotgun. On that occasion Miller drove the pair to Buckley Street, Morwell and parked the vehicle about 20 metres from a bottle shop called "Merton Rush Bottle Shop". Miller turned off the headlamps but left the engine running. Rose got out of the vehicle with his face covered with the bandanna he had used the night before. He walked to the counter of the bottle shop, pointed the shotgun directly at the face of the 28-year-old female attendant, Natalie Van den Holder, and said, "Give me the fucking money." Ms Van den Holder stepped back rapidly from the counter and from the gun and Rose leant over the counter and removed the drawer, containing approximately $2,100 from the cash register. He then departed the shop and got into the waiting vehicle. Miller turned on the headlamps and drove himself and Rose back to the premises at Lincoln Street.

10 They there left the firearm before driving on to Fitzroy, where they purchased heroin, with the proceeds of the second robbery, and then drove on to a car park in Bennett Street, Fitzroy North, where they both used some of that heroin.

11 Miller was arrested on 27 January 2004 and made full admissions in a recorded interview with the police. When asked his reason for committing the offences he stated, "For money and drugs."

12 Rose was arrested on 17 February 2004 and he also made full admissions in a recorded interview with police, as well as participating in two re-enactments at the scene of the two armed robberies. When asked his reason for committing the armed robberies he stated, "Cause I had a habit. I was on drugs." When asked his reason for intentionally causing injury to Mr Marriott, he stated, "Cause he approached me." When asked his reason for being a prohibited person in possession of a firearm he stated, "To do what I did." When asked his reason for possessing heroin he stated, "Because I had a habit. I was withdrawing. That's why I use it."

13 In a victim impact statement tendered before the sentencing judge, Mr Marriott wrote that he felt overwhelmed by anxiety and concern as a result of the offences committed on him, and that he suffered flashbacks to the time when they occurred. Since the robbery he said he had lost confidence in himself and in his ability to cope and had become socially recluse. He was under the care of a psychologist and he was unable to attend to his business in the way in which he used to do. He was afraid to be alone in the shop any longer, and the burden of conducting the business had therefore been cast upon his wife and in turn that had imposed further stress on both of them, thus adding to his suffering.

14 The judge, however, also received a number of psychological and psychiatric reports and other materials prepared in respect of each respondent. In a report dated 7 April 2005 which was prepared by Dr Kathryn Drew, consultant psychiatrist with the Community Forensic Mental Health Program, Victorian Institute of Forensic Mental Health, Dr Drew recorded that Mr Rose is a single 22-year-old unemployed man, living with his mother and siblings. He was born in Carlton to a woman of part-aboriginal origin but never knew his father, who was also of aboriginal origin. His mother later re-partnered and at the age of four he was sent to live with his grandmother, with whom he remained until she died when he was about 18 years of age. He had difficulty at school. He was a slow learner and disruptive of other students, and he was as a consequence sent from Collingwood Secondary College to Collingwood Alternative School, but he still left school during Year 8 without completing that year. Although he can read, he has difficulty in interpreting the meaning of what he reads, and he has never been employed. After leaving school he began to use cannabis and he used heroin until the age of 18 years, until he went "cold turkey" with his mother's assistance. Following his grandmother's death he moved to live with his cousin, but ultimately was evicted from that place when he could not pay rent. He moved then to Moe and began to drink heavily - up to two slabs of beer a night - and to use amphetamines intravenously on a regular basis, as well as benzodiazepines. It was during that period that he committed the offences.

15 In a report dated 27 June 2005 prepared by Mr Bernard Healey, consultant psychologist, Mr Healey reported that in addition to the education mentioned in Dr Drew's report, Rose undertook a six-month course at the Northern Metropolitan TAFE Institute in 2002 and completed the certificate "Learning Pathways" involving basic numeracy and literacy and computer skills. Intellectual testing revealed, however, that Rose has just average intellectual capacity with a full-scale IQ of only 91 placing him in the 27th percentile, (where 73% of his peers would do better). Personality testing was indicative of depression anxiety (linked to lassitude malaise) and significant social introversion/withdrawal (consistent with social inadequacy and reticence). Mr Healey concluded, therefore that Mr Rose is a young man in need of considerable support and guidance, and that he was certainly not the sort of person who is likely to have become involved on his own initiative in violent offending. Further, in Mr Healey's opinion, imprisonment would be likely to result in Mr Rose becoming even more depressed than he is, and possibly suicidal.

16 In a report dated 21 April 2005 prepared in respect of Miller by Dr Kate Roberts, Senior Psychiatric Registrar Forensicare, Dr Roberts stated that Miller was born in Victoria. His father was an alcoholic and was violent towards his mother. His parents separated when he was only six years old, when his father walked out. He was a failure at school and was involved in bullying and truanting. He dropped out of school after Year 10 and, although he is apparently literate, he failed all of the Year 10 exams. He has five brothers, of whom one is autistic, and a three-year-old son, the result of what is described as a short relationship. He first saw his son when he was undergoing drug rehabilitation in 2004 and is on good terms with the child's mother. Miller started using illegal substances at the age of 13. He initially took cannabis with alcohol. At the age of 16 he began experimenting with amphetamines and ecstasy and heroin. Later he used speed intravenously and "as many pills as he could get his hands on", as well as cannabis and a bottle of spirits a day. In the result he was a young man with a well established drug dependence although he was not suffering from any other significant mental disorder.

17 In a report prepared by Odyssey House dated 14 February 2004, it was further recorded that Miller had undergone residential treatment for drug addiction beginning on 5 January 2004. He reached the most senior phase of the program after demonstrating his capabilities and responsibility in the early stages of the program, and he remained drug free throughout the program but chose to leave of his own volition on 18 November 2004, after being moved back to an earlier stage of the treatment.

The judge's sentencing remarks

18 In his sentencing remarks, the judge made mention of the nature and gravity of the offences and the personal circumstances of each respondent. Notably, although both had committed a number of previous offences, Miller had only one conviction for an offence involving violence and Rose had not been convicted of any offences involving violence; Rose had not before been imprisoned; and Miller had been imprisoned for only 34 days.

19 In dealing with Rose, the judge referred to Eames, J.A.'s observations in R v. Fuller-Cust[1] as to the significance of aboriginality in the sentencing of aboriginal offenders, and stated that he had decided to make the non-parole period imposed on Mr Rose shorter than usual, because of Rose's youthfulness, pleas of guilty, the delay in bringing the proceedings, and because of what his Honour said was the substantial possibility of further rehabilitation. His Honour noted too that the prosecution conceded that the differential between head sentence and non-parole period might well be substantial in all the circumstances. It may be added as well that in the course of the plea the Crown conceded that the degree of cumulation of sentences to be imposed did not need to be great.

20 It is implicit in his Honour's sentencing remarks that, apart from the issue of aboriginality, his Honour considered similar considerations applied in Mr Miller's case and, also in Miller's case, that the judge was impressed by the progress which the respondent had made in rehabilitating himself from the effects of drug addiction.

Ground 1 - Maximum penalty for armed robbery

21 Although the judge referred in his sentencing remarks to the maximum penalty for armed robbery being 20 years, instead of 25 years, the respondent submits that it should not be assumed that the transcript is in that respect accurate and that if it were it should not be assumed that the apparent error was anything more than a slip of the tongue. In the alternative it was contended that even if his Honour really did make an error as to the maximum sentence, the error would be immaterial. I accept that submission. I do not doubt the accuracy of the transcript of his Honour's sentencing remarks, and, if the error were simply a slip of the tongue it is to be expected that it would have been corrected in his Honour's revised sentencing remarks. But I consider that the error should be regarded as immaterial.

22 Callaway, J.A. considered the relevant principles in R. v. Beary[2]. As his Honour there explained, there are a series of decisions, of which perhaps the clearest is R. v. RJE[3], in which this Court has held that a mistake made by a sentencing judge about the maximum penalty will not in all circumstances vitiate the exercise of the sentencing discretion. As Callaway, J.A. summarised the effect of the cases, it is settled that not every mistake as to the maximum penalty vitiates the sentencing discretion but before the Court holds that such a mistake does not have that effect we must be satisfied that it could not have materially affected the sentence.

23 Having regard to the structure of the sentencing judge's sentencing remarks, and particularly to the low level of sentence imposed on each of the counts of armed robbery, I do not consider that it would have made a difference to the sentences imposed if it had been drawn to his Honour's attention that the maximum penalty was 25 years. Notwithstanding the requirements of s.5(2)(a) of the Sentencing Act 1991, it appears to me that the sentences imposed are so far below the maximum that even the most complete appreciation of the maximum sentences for armed robberies could not have caused an alteration in the results of the judge's intuitive synthesis.

Ground 3 - Different sentences for counts 1 and 5

24 I do not perceive any error in the judge's decision to impose different sentences in respect of counts 1 and 5. Evidently Rose used less force and it may be that he put the victim in less fear in the case of the second armed robbery than in the case of the first and while both offences were on any analysis serious examples of armed robbery, it does not appear to me that the margin of six months between the sentences necessarily falls outside the range of the sound discretionary reflection of the difference in gravity between them.

Ground 2 - Different sentences for counts 3 and 4 and 6 and 7

25 It is perhaps a little surprising that the judge should have thought it appropriate to impose a slightly greater sentence on counts 3 and 4 than upon counts 6 and 7. But I am unable to detect error in his Honour's decision to do so. For much the same reasons as justify the differences between the sentences imposed on counts 1 and 5, I think that it was open to the judge to take the view that counts 3 and 4 warranted greater sentences than counts 6 and 7. While perhaps not every judge may see it as relevant that the weapon was used in the case of the first robbery in a manner more harmful than the second, there is a logical difference, and the difference in penalty is not inappropriate to reflect it.

Ground 4 - Maximum sentences imposed on count 8

26 It is apparent that the judge, I think, did err in imposing the maximum sentence of one year for the offence of being in possession of a prohibited substance. Bearing in mind the relatively low level of offending involved, and the respondents' plea of guilty, the sentence should, I think, have been something less. But I am persuaded by the respondents' submission that the error does not warrant the re-opening of the sentencing discretion. By any standard the error is of minor importance, not least, as it was submitted, for the reason that it makes no difference to the total effective sentence, and in a Crown appeal, where the rule is that our intervention ought be restricted to exceptional cases, or at least to those which raise important questions of principle, such an error is in my view not enough to meet the test.

Ground 2 (Rose) - Failure to impose sentence on count 6

27 To begin with, it was to be argued that an error had been made in the case of Mr Rose in relation to count 6, inasmuch as the judge had not referred in his reasons for the imposition of that sentence on him. The Crown concedes, however, that there is nothing in the point sufficient to vitiate the sentencing discretion. Plainly it is important that judges make clear in their sentencing remarks exactly why they have determined to impose a particular sentence. But in this case his Honour's failure to follow that course in Rose's case in relation to count 6 makes no difference to the outcome. It is clear that the judge intended to impose the same sentence on each of the respondents on count 6 and it is appropriate that his Honour should have done so.

Ground 5 - Manifest inadequacy

28 Even allowing for the relative youth of the respondents and their pleas of guilty and their apparent remorse, I consider that the sentences imposed by the judge on the counts of armed robbery are inadequate. Armed robbery is by any standard a serious offence, as is made plain by the fact that the offence carries a maximum sentence of 25 years' imprisonment[4], and although the armed robberies in this case were not amongst the most serious that may be imagined, such as, for example, the kind which were dealt with by this Court in R. v. Gardner and Coates[5], they were serious, and they were aggravated by the fact that the respondents used a shotgun, which is surely one of the most terrifying weapons, and by the fact that the offences were committed in order to feed drug habits, and that the offences were repeated. In my judgment, the need to express denunciation, the clear requirement for general deterrence and the importance of just punishment together warranted more than the sentences which were imposed. These offences fell within what is sometimes described as the median range of armed robbery offences and therefore other things being equal I consider that they would have warranted sentences of something in the order of six years' imprisonment. Even allowing then for discounts for the respondents' pleas of guilty and the relative youth of the respondents and such prospects of rehabilitation as they may have, I consider that counts 1 and 5 would still have warranted head sentences of somewhere in the order of four years' imprisonment on each count. There was also justification for a significant degree of cumulation, and in the ordinary scheme of things I should not have expected it to be much less than twelve months.

29 On the other hand, this case threw up for the sentencing judge the very difficult task of balancing the imperatives of general deterrence and denunciation against the youth and prospects of rehabilitation of the respondents, bearing in mind the pivotal role which drug addiction played in each case, and thus the overall need to produce a sentencing synthesis tailored to the particular and special circumstances of each case. It is apparent if I may say so with respect that, consistently with the observations of Buchanan, J.A. in R. v. McKee and Brooks[6] the sentencing judge paid particular regard to the age and antecedents of the respondents, the factors which led to their commission of the offences, and to the significant progress which each of them has made in beating their addiction and re-equipping themselves to play a constructive role upon their release back into society. His Honour thus produced sentences which in the exercise of his intuitive synthesis he considered to be best adapted to the circumstances of the offenders.

30 Despite, therefore the apparent inadequacy of the sentences which were imposed, I am in the end not disposed to intervene. In my view the principles of double jeopardy applicable to Crown appeals against sentence[7] mean that upon any re-sentencing the sentences to be imposed on counts 1 and 5 would not be dramatically in excess of the total effective sentence of three years imposed, and the degree of cumulation as between the sentence to be re-imposed on count 1 and the sentence to be re-imposed on count 5 would not be such as much to increase the margin. When all that is taken into account in conjunction with the delay that occurred in sentencing and in Miller's case to the time already served, and most importantly to what I judge to be the probable effect of any increase in sentence on the prospects of successful rehabilitation, I am persuaded that it is in the interests of justice to leave matters where they lie.

31 Lest there be any doubt about it, however, the respondents should understand that this has been for me a very close-run thing. But for their ages and antecedents, and the efforts which I judge them to have made to put their addiction behind them and to rehabilitate themselves for the pursuit of a lawful and worthwhile existence, I would have been for imposing substantially increased sentences on counts 1 and 5. It goes without saying that the approach which would be adopted if they were to re-offend would be very different.

32 In the event, I would dismiss the appeals.

37 I would also dismiss the appeal, for the reasons given by Nettle, J.A., with which I agree. I would add this for myself. As was apparent from the first question I asked of counsel for the Crown, it is of the first importance in a Crown appeal that the Crown articulate for the assistance of the Court why it is that the appeal is brought. As the High Court said in Everett's Case[9], and this Court affirmed in R v Clarke,[10] a Crown appeal should only be brought in "the rare and exceptional case" in order to establish some point of principle.[11]

38 It should in my opinion be steadily borne in mind that under the law of Victoria sentencing is for the trial judge. Moreover, it is a deeply embedded principle of the common law that a person should not be exposed to double jeopardy, and although the classic case of double jeopardy is being tried a second time, it has been well accepted in Australia that standing for sentence a second time is a species of double jeopardy.[12] A Crown appeal is an exception to both those propositions and, as has been said time without number, a Crown appeal is not an occasion for seeking a different view on what the right sentence should have been.

39 When asked by me whether the test was: could the sentence arrived at have been rationally arrived at in the circumstances, counsel for the Crown agreed that that was the test, or that was a way of stating the test, the corollary being that, if the sentencing conclusion could rationally have been arrived at, the Crown appeal must fail. In my opinion, for the reasons given by Nettle, J.A., the sentencing result could rationally have been arrived at, taking into account the matters on both sides which his Honour plainly did take into account. In my opinion, where, as had obviously occurred here, this judge had given careful reflection and had paid close attention to the competing sentencing principles - on the one hand denunciation and deterrence, and on the other the very significant public interest in rehabilitation - a court of appeal would be very slow on a Crown appeal to intervene and say there is no rational basis for the result arrived at.

40 The order of the Court is that the appeal is dismissed.

(Mr Holdenson and Mr Tehan each made application for an indemnity certificate under s.15(1)(a) of the Appeal Costs Act 1998.)

MAXWELL, P.:

41 Yes, we grant that certificate to each party.

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Cases Cited (2)